Mediation is for everyone, from the most sophisticated families with the most complex finances to the simplest of situations. Couples with high net worth might consider their situation too complex or their assets too great for mediation. They may imagine that only costly, litigious attorneys from big firms can properly defend them and theirs. Perhaps our collective consciousness dictates that some situations just be litigated, must be defended by big guns or be at risk of mishandling or sacrifice. And certainly, concern about protecting what you have created is legitimate.
Even for those New Yorkers with considerable assets, mediation remains the best option. The higher the stakes, the more important the process by which they are managed.
Here are some of the benefits of mediation for couples with high net worth and intricate assets in the Hamptons, including East Hampton, Sag Harbor, and the surrounding areas:
Privacy & Confidentiality
Mediation is confidential. Unlike matters brought before a court, everything discussed in mediation is held in the strictest confidence. Once an issue comes before a court, privacy can be compromised. Privacy competes with other values, such as formal discovery, involvement of more and more experts and their staff, adversarial attorneys who can even weaponize the exposure of private, embarrassing information as a negotiating strategy. In fact, the most personal and intimate details of the relationship and portfolio are automatically disclosed to attorneys, the court, and staff, and can become a matter of public record. The more formal and public the process, the less the individuals can hold their own histories close to their vests. The more court resources are involved, the more any individual case becomes an important matter of legal precedent — the individual interest often is subjected to the collective, legal good.
While policy and legal issues are to be revered, divorcing New Yorkers are concerned, as they should be, with their children, themselves and their own current life-changing circumstances. When privacy is compromised, the parties lose control of the narrative, the pacing of disclosure to others, including their own children, and may become subject to unwanted, undreamt of, consequences.
For example, tax issues may be newly subjected to scrutiny. Tax irregularities or indiscretions can be freshly reviewed and potentially draw unwanted attention. Consider the small businesses with creative ‘pass through’ expenses and write-offs such as health or auto insurance coverage for a spouse — a spouse who is not employed per se by the company. Consider the cash businesses and cash income, perquisites, bonuses. Once a court is involved, so might be the IRS. Our sister state, New Jersey, follows a rule derived from a case, Sheridan v. Sheridan, which stands for the presiding judge’s obligation to immediately contact the IRS should any spurious tax matter, however incidental, come to light before the court. Few among us would willingly and knowingly agree to reopen our books for the IRS to have another go!
Mediation, by contrast, is governed by different rules than the courts. Privacy is regarded as sacrosanct; confidentiality is an essential tenet of the process. Candor and transparency are possible because the mediation meetings are closed — there is no mandate on the mediator to contact the tax authorities regardless of what is revealed. Though a legal process, navigated by a mediation lawyer, the parties themselves maintain control.
Mediation calls upon our higher selves
Situations that have given rise to the divorce are kept private. In a litigated, “at fault” divorce, grounds must be proven. For example, if the grounds are infidelity, third parties can be brought in to testify. This introduces a myriad of repercussions, potentially devastating people’s lives.
Mediation, on the other hand, always proceeds utilizing the grounds of no-fault divorce, called “irreconcilable differences,” in NJ and “irretrievable breakdown of the marriage,” in NY.
Hamptons mediation focuses on problem solving, not fault finding. The mediator’s destination is fair resolution, not destruction of everything along the way. Mediation addresses details but stays out of the weeds. Mediation refuses to weaponize settlement terms as punishments for either party’s transgressions or failures in the marriage. Mediation always bears in mind that only two divorcing adults, invariably with family between them, are the two who will be clearing up whatever mess they make and whatever harm they do.
Divorce can be detrimental but does not have to be. Mediation calls upon our higher selves; litigation incites our base, aggressive nature.
Mediation is the ideal option for individuals who have enjoyed success, been privileged with higher education, and had the opportunity to explore therapeutic modalities such as individual or couples therapy. Ideal mediation clients have the mature ability to introspect, the creativity to problem solve, the self confidence to insist that their values shape their outcome.
Mediation forfeits no other paths — neither litigation, nor arbitration, nor retention of separate counsel. Contrarily, once a court action has been filed, choices become limited, a shot has been fired, bridges are ignited to burn.
When individuals are committed to moving conservatively and with care, mediation is the thoughtful starting place. Mediation clients appreciate that conflict resolution has developed from brutal force, intimidation, win/lose, into a collaborative and child-centered process. Candidates for mediation are informed, aware, and innovative.
Mediation in the Hamptons offers a progressive way to divorce. A way that is nuanced and customized to the needs of individual clients. For those with the acumen to divorce wisely, Sag Harbor and East Hampton Mediation is the discriminating choice.
Mediation in The Hamptons – Part 2
Mediation keeps people focused on what is important — their families, their resources, themselves! The evolved approach to a devolved matter, mediation protects more than assets, it protects families.
Mediation is an ideal option for people who might otherwise think their only option is litigation.
A good agreement can serve as a family’s constitution, a guide to make later decisions on new matters.
Often litigation concerns itself with adhering to court-appointed deadlines and procedures — filing Motions in order to request the court’s intervention on one matter or another, instead of entering into direct, problem-solving communications. In mediation, these Motion-worthy matters are taken up and addressed more exactly and immediately, reducing countless hours and dollars.
For a fraction of the cost of traditional litigation, Hamptons mediation supports clients in arriving at resolution. For approximately $10,000, a divorce can be mediated, complete with a settlement agreement reflecting all of the rights and obligations of the parties and their children. Families who mediate, resolve all questions of spousal and child support, division of assets, allocation of parenting time, custody, and more. Clients complete their divorces comprehensively and privately, within a confidential, therapeutic environment.
Working cooperatively with the mediator, parties typically arrive at a settlement within several sessions (less than a dozen hours of time with the mediator).
The Agreement
The result of the mediation sessions is a written agreement. For divorcing parties in the Hamptons, New York, this agreement is called a Stipulation of Settlement, Settlement Agreement, or Separation Agreement.
Before entering into the agreement, the parties review the document with the mediator. Then both parties have ample time to review and revise the agreement before executing a final version reflecting all amenable changes.
Divorce necessitates collaboration and creativity, not powerlessness. Mediation invites participants to remain directors of their destinies.
Attorneys in Mediation – the Role of the Review Attorney
At this point, at their discretion, parties may seek separate outside counsel deemed “review attorneys.” Usually, mediation-friendly attorneys, review attorneys go through the agreement to advise the client of his or her individual rights and examine how the agreement may specifically impact the individual.
The final agreement memorializes the outcome of the parties’ negotiations and will serve as the blueprint for parenting and financial arrangements post-divorce. Along with other pleadings, the agreement will ultimately be submitted to the court in order for clients to receive a legal divorce.
Our agreements aim to capture not only the results of the mediation but the parties’ intentions and often their reasoning (when not obvious on its face) behind their final decisions. The purpose of this is not only to relieve the clients from having to recollect how they came to certain decisions, it provides a roadmap for third parties in the event they refer to the document in the future. A good agreement can serve as a family’s constitution, a guide to make later decisions on new matters. And new matters do arise — regardless of how prescient the parties’ powers — presenting new opportunities to rethink, review and yes, agree.
Self-Determination in Divorce
Divorce necessitates collaboration and creativity, not powerlessness. Mediation invites participants to remain directors of their destinies.
Conversely, litigation removes the reins from litigants’ hands; ostensibly inviting a third party, a Judge, to decide the most personal and sacrosanct matters; matters that most people wish to retain under their own dominion. A Judge is empowered to, well, render judgment in areas where only non-judgment is welcomed. Judges, however experienced, educated and well-intentioned, are not immune to the biases and influences of their own personal and professional histories.
No matter how great the wisdom of a court, mediation rests on this premise and preference: control should rest with the people most experienced and affected by the outcome.
In marriages, the two people most qualified to make decisions regarding their own lives are the self-same people in the process of living them! They should remain empowered as decision-makers. Of course, when needed, the support and input from experts are embraced to assist mediation participants in making well-informed choices, but the choices remain their own.
No matter how great the wisdom of a court, mediation rests on this premise and preference: control should rest with the people most experienced and affected by the outcome.
An Exceptional Way Forward
Divorce is common, but the management of one’s own divorce need not be. Mediation offers an extraordinary and humanistic pathway through divorce.
Mediation alone affords divorcing couples benefits beyond merely accomplishing a legal task. Mediation supports clients in becoming more equipped co-parents, communicators, leaders of their family unit. Parties who mediate enrich their ability to collaborate through adversity. Often mediation clients grow into their best selves, exemplifying individuals their children can model. Through the work of mediation, clients are regarded with compassion and dignity. Within that setting, they learn how to strengthen the skills, functionality, and resilience of the entire family. They also have the chance to heal. Most divorces and most processes for divorce do not have these built-in opportunities.
So where a divorce can be detrimental, and the ordinary approach to divorce devastating, mediation provides an alternative that is productive, generative and restorative.